Catholic University Law Review Volume 20 Issue 3 Spring 1971 Article 5 1971 Consumer Rights and the Regulatory Crisis Nicholas Johnson Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Nicholas Johnson, Consumer Rights and the Regulatory Crisis, 20 Cath. U. L. Rev. 424 (1971). Available at: https://scholarship.law.edu/lawreview/vol20/iss3/5 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Consumer Rights and the Regulatory Crisis* Nicholas Johnson** I am writing to ask you to join in Common Cause. We are going to build a true "citizens' lobby"---concerned not with the ad- vancement of special interests but with the well-being of the nation.' Introduction: The Great Disintegration As our big, bustling nation races through the dawn of the new decade into the Spring of 1971, the American people seem peculiarly melancholy. Our government is failing us. The message comes from many tongues in many parts of the land. Na- tional news magazines do cover stories on "What Ails the American Spirit." The politicians talk of a pronounced psychic downturn, a recession of the spirit. Historian Richard Hofstadter calls the 1960's "The Age of Rubbish." Historian Andrew Hacker speaks of our time as "the end of the American era." The government is not working. Mason Williams knows it. He says: "Government makes better deals with business than it does with people." John W. Gardner knows it too. The Chairman of the Urban Coalition, in a remarkable letter he is writing to 200,000 Americans in every part of our land, thinks the situation is so bad we need to "build a New America." He says: "We must shake up and renew our outworn institutions." About seven months ago, 75 distinguished philosophers, historians, economists, and scientists gathered in Aspen, Colorado, to discuss our na- * This commentary is an adaption of a paper prepared by Federal Communica- tions Commissioner Nicholas Johnson which was presented to the "Consumer and the Regulatory Process" Symposium of the Consumer Protection Committee, the Federal Bar Association Annual Convention, Washington, D.C., September 17, 1970. ** B.A. 1956, LL.B., 1958, University of Texas; Commissioner, Federal Communi- cations Commission; formerly Acting Associate Professor of Law, University of Cali- fornia (Berkeley); author, How TO TALK BACK TO YOUR TELEVISION SET (1970). 1. Letter from John W. Gardner to America, Fall 1970. [hereinafter cited as Letter to America]. Consumer Rights and Regulatory Crisis tion's fate. James Reston reported the meeting's gloomy conclusion: Ineffi- cient governments, greedy men, and modem technology are gathering to- gether to debase human values, ruin the quality of our environment, and threaten the future of a decent and civilized world. No one has captured the mood better than journalist Nicholas von Hoff- man: The preachers and the hawkers forecast the apocalypse, yet the premonitions that come from our daily life experiences-waiting in the supermarket check-out line, calling a policeman, getting auto- mobile insurance-these all tell us that what's building up isn't the Grand Revolution but the Great Disintegration. 2 The intent of this essay is to focus on that part of the new American mood that should be most pertinent to the Federal Bar Association and lawyers everywhere. I want to focus on our failing governments, or, if you will, those oft-used (but more or less accurate) bromides about the "consumer crisis" and the "regulatory crisis." Clearly, the system is not working. Just as clearly, this places a heavy responsibility on every attorney. Canon 8 of the American Bar Association's new Code of Professional Responsibility makes it the lawyer's duty to assist in improving the legal system. While the foremost task of this essay is to address the so-called "Crisis of the Regulatory Commissions,"' 4 it is important-indeed crucial-to recog- nize first that this malaise spreads across the whole strata of our governmental alignment from state legislatures and county courts to public schools, univer- sities, the draft, the police, the welfare system, and even whole cities. These are the staging areas for the battalions of national problems that daily troop to Washington to keep the Presidency, the Congress, the Judiciary, and our own headless fourth branch of government-the regulatory commissions- constantly under siege. We cannot hope to understand the problems of the regulatory commissions without first studying the crisis in governments generally. Seldom since the nation's Grangers and shopkeepers marched on the state legislatures in the 1870's to demand protection from the railroad rate rape has the consumer tide ridden so high in this country. 2. von Hoffman, If the Senate Changes Hands, Washington Post, Aug. 28, 1970, § B at 15, col. 2. 3. The Code was adopted by the American Bar Association's (ABA) House of Delegates on August 12, 1969, effective January 1, 1970. It is intended to replace the Canons of Professional Ethics, which were promulgated by the ABA in 1908. The bar is now engaged in a nationwide effort to secure adoption of the Code in every state. 4. This phrase was coined from the title of a recent book, THE CRIsIs OF THE REGULATORY COMMISSIONS (E. Phillips & P. MacAvoy ed. 1970). Catholic University Law Review [Vol. 20:424 What is happening now appears to be a major movement of public opinion across the nation. The effectiveness of the regulatory commissions has been raised once again as an issue of broad popular interest and concern. The people are interested. They want to know what's going on, what's wrong. This is new. Washington insiders, who have long manipulated this ad- ministrative process to their own advantage-and to the detriment of the pub- lic-are worried. In theory, the administrative process as originally conceived was to have been the consumer's friend. The legal architects had in mind a fourth branch of government, one that would stand alongside the executive, the legislative, and the judicial branches as an independent sentinel to guard the consumer's civil rights. James Landis, the great student of administrative law and late Dean of the Harvard Law School, stressed that the administrative process is not, as some suppose, simply an extension of executive power ... In the grant to it of that full ambit of authority necessary for it in order to plan, to promote, and to police, it presents an assemblage of rights normally exercisable by government as a whole.5 The theory of the administrative process was to imbue independent com- missions and commissioners with potent tripartite powers (to prosecute, to legislate, and to judge) to pursue the public interest. The theory has not been allowed to work. Over the last half century the regulatory process seems to have become frozen while the regulated industries have grown up, developed around the commissions, and engulfed and dominated the very agencies that were established to keep the corporations in line. The stamp of failure has been written large across the work of our ad- ministrative agencies. In later years Dean Landis himself was greatly disil- lusioned. The regulatory agencies were no longer planning, promoting, and policing. They had found procrastination, plunder, and polluting a more profitable path. Critics have counseled us for decades with now-shopworn recommenda- tions to abolish, demolish, dismantle, or sterilize the "independent" agencies. Some want to strip away the agencies' adjudicative powers. Others would eliminate the commissions altogether. Obviously the decades of criticism are having little effect. The ICC, the FTC, the FCC, and all the rest are still very much with us. What can be done? Plenty. First, if we are to accomplish any meaningful reforms of the regulatory agencies, we must draw back and take a look at government as a whole--not 5. J. LANDIS, THE ADMINISTRATIVE PROCESS 15 (1938). 1971] Consumer Rights and Regulatory Crisis just the headless fourth branch. Second, it is not that the regulatory scheme as presently constituted cannot work. It can. With modifications, all designed to bolster the original theory as Dean Landis and others have spelled it out, the agencies could come to serve the public interest as they were originally designed to do in theory; the present system could be turned into the consumer's best friend. After some generalized comments on the state of government as we find it today, I want to develop three specific suggestions that could go a long way toward revitalizing our watchdog agencies: 1. The commissions need more independence. 2. Stronger public-interest advocates need to be developed, and they must be ensured fair opportunities to influence agency decision-making. 3. The press (and thereby the public) must be given freer access to in- formation about the administrative process. These three suggestions will be discussed against the backdrop of two fundamental assumptions. First, I think that thoughtful lawyers will agree that representation is vital to a person seeking to maintain a free flow of con- sumer communication-perhaps equally as vital as to the defendant in most criminal cases. Citizen participation in the FCC's decision-making process, much like citizen participation in the work of sister agencies, has historically been virtually non-existent. This in large part has been due to the complex rules and procedures we lawyers have evolved (and profited from) and the ordinary citizen's inability to hire competent counsel to lead him through the maze. A second aspect of the commissions' ineffectiveness is their continual re- fusal to give those citizens groups that do dare to approach their doors the "standing" to participate in the decision-making process.